Pakistan has a legal system and judiciary that is riddled with corruption. Getting justice in Pakistan is one of the most difficult and time consuming tasks. People are, therefore, reluctant to go into long and expensive ligations without the certainty that justice would be forthcoming at the end.
Due to this fact there has emerged a parallel judicial system especially in the feudal and tribal areas in the form of jirga or punchayat. But, unfortunately, it has been serving the rich and the dishonest, rather than the poor masses of the country. There seems to be no authority in this gruesome lawless country to question the actions of these groups. They are mostly self-formed and the membership belongs to the few rich of the area, (not the educated) and some religious leaders, who are again semi-literate.
Although this system does not enjoy any legal standing and its constitutionality may be challenged under article 175(2) of the constitution of Pakistan, many people in rural areas have recourse to it because of their reluctance to use formal judicial system possibly due to their mistrust in police and courts. Jirga or punchayat system has many flaws and has been severely criticized every now and then, especially for its decisions in honour crime cases.
It seems to be riddled with flaws. First, the system does not follow any judicial procedure and women accused of honour crimes are not provided the right to prove their innocence. The universally recognized principle of law that ‘no one should be condemned unheard’ is thus violated. Secondly, as the jirga or punchayat comprises only male members and women have no role or representation even as witnesses, most of the decisions including in honour crimes are gender biased.
Thirdly, the jirga or punchayat consists of only influential people and landowners, while the honour crime and rape cases, normally involve women from poor families and men from influential families; there is a strong likelihood that the waderas provide cover to their friends and relatives and decide against the poor.
Fourthly, decisions of the jirga or punchayat are considered final and binding by the illiterate masses and there is no system of appeal.
Finally, the enforcement of decisions, especially death sentences in honor crimes, by the jirga cannot be justified. Jirga has thus assumed all three powers, judge, jury and executioner (legislature, executive, and judiciary) which is against the well-established principle of the separation of powers.
It is constitutional obligation of the state to provide justice to its citizens. The government of Pakistan should either abolish this de facto judicial system or take concrete steps to institutionalize jirga system; if government makes sure that members of jirga are fair, honest, unbiased, and acquainted with basic laws, and there is governmental check and balance on its powers, this parallel judicial system may serve the masses to have access to expeditious justice. But the present situation is quite alarming and deserves prompt attention of all concerned authorities.
MUHAMMAD ZAHEER ABBAS,
Islamabad, March 26.